HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ruth Whale
Applicant
-and-
Keele North Recycling Inc. and Romeo Di Battista
Respondents
DECISION
Adjudicator: Judith Keene
Indexed as: Whale v. Keele North Recycling
SUBMISSIONS
Ruth Whale, Applicant ) Self-Represented
Keele North Recycling Inc. and ) Earl Heiber, Counsel
Romeo Di Battista, Respondents )
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on May 20, 2010 alleging discrimination with respect to employment because of sex. The Application has been the subject of a number of Interim Decisions occasioned by initial failure to respond on the part of the respondents, which resulted in the Application being scheduled for a decision on the merits in default of a Response (see 2010 HRTO 2269). After reviewing submissions from the parties, I revoked the Order in that Decision (2011 HRTO 282), allowing the respondents to participate in a hearing on the merits. The hearing was held on May 17, 2011, and continued on July 21, 2011.
2In the Application, the applicant identified the personal respondent as Romeo “Dipateasta”. The personal respondent confirmed that the correct spelling of his surname is Di Battista. At the second day of hearing, both parties agreed that there was no assertion that there might be two individuals involved in these proceedings, one named Dipateasta and one named Di Battista, and I concluded that the name had simply been misspelled. The style of cause is amended accordingly.
3The applicant alleged that her employment was terminated because she was a woman. The respondents deny that this occurred. After hearing the evidence I have concluded that the applicant has proven a breach of the Code. My reasons follow.
THE RELEVANT LAW
1Section 5 of the Code states as follows:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
4The evidentiary burden is on the applicant to establish that, on a balance of probabilities, a prima facie case of discrimination exists. (See Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536, 1985 CanLII 18.) Upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory; however, the the onus of proving discrimination remains on the claimant throughout (Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para.119). If personal characteristics protected by the Code are one of the reasons for actions or omissions that adversely affect the applicant, a breach of the Code is established; see for example Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 1989; CanLII 97 (S.C.C.), Filion v. Capers Restaurant, 2010 HRTO 264.
5Demonstrative evidence of discrimination is not necessary to establish a breach of the Code. Nor does an applicant need to have a witness to discriminatory conduct. The applicant may rely on circumstantial evidence, which may include evidence concerning any relevant circumstances, including evidence of actions or omissions on the part of the respondent, that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to support such an inference. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. Evidence must always be sufficiently clear, convincing and cogent to satisfy the “balance of probabilities” test stated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53. In that case, the Supreme Court reaffirmed the nature of the civil standard of proof, and discussed the difficulties inherent in a determination as to whether the testimony of one party is more reliable than that of another. The Court ruled that, where proof is on a balance of probabilities, the trier of fact must not consider the witness’s evidence in isolation, but should consider the totality of the evidence.
6The following factors assist in the assessment of reliability and credibility and the application of the ‘preponderance of the probabilities’ test:
the internal consistency or inconsistency of evidence
the witness’s ability and/or capacity to apprehend and recollect
the witness’s opportunity and/or inclination to tailor evidence
the witness’s opportunity and/or inclination to embellish evidence
the existence of corroborative and/or confirmatory evidence
the motives of the witnesses and/or their relationship with the parties
the failure to call or produce material evidence
See Loomba v. Home Depot Canada, 2010 HRTO 1434.
7There is a corporate as well as a personal respondent. Section 45(1) reads as follows:
For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 44 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
THE EVIDENCE
2I heard testimony under affirmation from the applicant, from her fiancé, Kevin Craig, from the personal respondent, Romeo Di Battista, and from the respondents’ witness, John Blair. Mr. Craig was not in attendance when the applicant gave her evidence.
3Mr. Di Battista, as a named respondent, had a right to be present, and would ordinarily have been present during the applicant's evidence. Counsel for the respondents, and Mr. Blair, were present for all of the testimony for the applicant. Mr. Di Battista chose not to be present until he was to give his testimony. I asked counsel for the respondents if he were authorized to proceed in the absence of Mr. Di Battista, and he indicated that he was, having been instructed that Mr. Di Battista would be attending the hearing to give evidence between business meetings.
4In view of the fact that the applicant was not represented by counsel and in the interest of fairness, I intervened on occasion during the course of the hearing to ask questions of both the applicant’s and the respondents’ witnesses, giving the parties the opportunity to ask further questions after I had done so.
5I asked the applicant whether she wished her filed documents entered as exhibits, and she agreed to this. There being no objection from the respondents, I marked as exhibits the Application, the applicant’s resumé, and Records of Employment for both the applicant and her witness, Mr. Craig.
FACTUAL BACKGROUND
6The parties agreed in respect of many of the facts. Where there is disagreement, I indicate it below.
7The applicant and her fiancé, Kevin Craig, were seeking employment in October of 2009. On October 6, 2009, in a newspaper, the applicant saw an advertisement placed by the corporate respondent seeking “recycling pickers, labourers/machine operators”. The applicant and her fiancé went to fill out an application for employment at the corporate respondent's premises.
8The parties agreed that the applicant and Mr. Craig were hired as general labourers tasked with picking out and sorting wood, steel and cardboard from piles of material left for recycling. The applicant stated that she is “in demolition/recycling—that’s my trade”; her resumé reflects this. The applicant had brought a witness who could testify to her capabilities, but the respondent conceded the point that the applicant was capable of doing the work, and the witness did not testify. Mr. Blair stated that he had no concerns about the applicant's performance in the two days that she worked for the respondent.
9The applicant’s fiancé was hired on October 7, 2009 by John Blair, the corporate respondent’s General Manager of Operations. The parties agreed that Mr. Craig was assigned to work on Thursday and Friday the eighth and ninth of October 2009, and that Mr. Blair telephoned him on Friday after work, asking him to “bring Ruth in” to work on the following Saturday. The applicant testified that she was “excited to start work” after being unemployed. In her Application, she noted that she told her two teenaged daughters to “make a list of the things they need and want, cause mom got a job finally (recession)”.
10The applicant worked a 12 hour day on Saturday. The parties also agreed that Sunday was a day off for everyone, and that Mr. Blair told Mr. Craig that the applicant would not be needed for work on Monday.
11Mr. Craig worked the following Monday, and received a call that evening from Mr. Blair asking whether the applicant could come in on Tuesday, October 13, 2009. Both Mr. Craig and the applicant worked in the yard on Tuesday from 6 AM until 6 PM. The applicant testified that she had used the office washroom on that day. Mr. Craig stated that he had advised the applicant to use the office washroom rather than the portable facility in the yard, because the portable had no toilet paper, and that she did so. In cross-examination, he stated that most of the yard workers used the outside washroom, as did he “unless conditions were too bad” there: he referred to dirty conditions and lack of toilet paper. In cross-examination he testified that he knew of no policy about the use of washrooms.
12Both Mr. Blair and Mr. Di Battista testified that Mr. Blair was responsible for hiring and firing staff, and the applicant did not contest this. Mr. Blair stated that prior to the time the applicant was hired, the corporate respondent had employed women who worked in the office. He also stated that, since the applicant left employment, the corporate respondent has hired no female general labourers.
13The parties disagree about the other events that allegedly occurred on October 13, 2009. Mr. Craig testified that, shortly after the applicant had used the office washroom, Mr. Di Battista approached the place where he was working and “began yelling and waving his arms at” Richard Majewski, the yard foreman who supervised both the applicant and Mr. Craig that day.
14In cross-examination Mr. Craig stated that he had stood approximately 100 feet away from the place that Mr. Majewski and Mr. Di Battista were standing. He testified that he could hear the voices clearly, but that he could not hear everything that was said. He testified that most of the talking came from Mr. Di Battista, and Mr. Majewski either did not reply or gave brief replies. Mr. Craig testified that he formed the impression that Mr. Di Battista had objected to the applicant's use of the office washroom. He testified that he did hear Mr. Di Battista yell “this ain't no fucking charity”. After Mr. Di Battista left, Mr. Craig approached Mr. Majewski to ask what was going on. He said that Mr. Majewski looked upset and stated that Mr. Di Battista was “upset about Ruth’s presence”, and that “Ruth used the washroom and Romeo wasn’t pleased”. Mr. Craig stated that Mr. Majewski told him that he (Mr. Majewski) had to deal with this kind of behaviour from the boss quite often; “he's crazy”.
15Mr. Craig testified that before he left for the day on Tuesday, October 13, 2009, Mr. Blair called him into the office and said “we don't need Ruth tomorrow but we do need you”. Mr. Craig asked why the applicant was not wanted. He did not recall precisely what Mr. Blair said in response to this, but that whatever he said did not answer the question and he had to repeat the question twice. The third time, Mr. Blair “kind of mumbled “because she's a woman”. Mr. Craig went to the car where the applicant was waiting, and reported this to her. Mr. Craig testified, “She was very upset.”
16The applicant testified that, when Mr. Craig joined her in the car, he asked why she was in trouble. He told her that Mr. Di Battista apparently thought “I was just hanging around”.
17Mr. Craig continued to work at the respondent's workplace for a further three weeks. He and the applicant testified that, because he had lost his driver's license, the applicant had to drive him to work and back every day. Further, both he and Mr. Majewski were frequently yelled at. He quit on October 25, 2009.
18In regard to the alleged conversation with Mr. Craig at the end of work on Tuesday, October 13, 2009, Mr. Blair testified that he had no recollection of asking Mr. Craig to come back to the office that day, and no recollection of the alleged conversation. In response to further questions from the respondents’ counsel, he also stated specifically that he had no recollection of telling Mr. Craig that the applicant was not to come in the following day, and no recollection of being asked by Mr. Craig why the applicant was not to come in. He denied that the applicant was fired because she was a woman.
19Mr. Blair testified that he was not aware of any argument between Mr. Majewski and Mr. Di Battista on October 13, 2009. He stated that Mr. Di Battista does not yell at him. Mr. Blair stated that he had no reason to believe that Mr. Di Battista was upset for any reason that Tuesday. He stated that he had no recollection of Mr. Di Battista mentioning the applicant at all. In the course of his testimony, Mr. Blair stated that Mr. Di Battista only came in three or four times a week, and that he was “always in the office” and did not go into the yard area. I asked if he would know if Mr. Di Battista left the office, and he indicated that he would. He indicated that he was in a position to see everything that goes on in the office, and that there was a camera outdoors that gave him a view of the area where cars and trucks pull up to drop off materials for recycling.
20Mr. Blair testified that the applicant was issued a ROE on a “quit” basis, because she failed to show up again after working Saturday and Tuesday. He stated that he had not asked Mr. Craig on the following day why the applicant had not shown up for work. He acknowledged that the ROE was not issued until March 4, 2010.
21Mr. Di Battista is the president of the corporate respondent, which is one division of several companies he controls. Mr. Di Battista testified that he did not remember the applicant and has never seen her or Mr. Craig. He qualified this somewhat by indicating that he might have seen them in passing “maybe in the yard as I was coming in”. He stated that, during the relevant time period, he visited the offices of the corporate respondent “every couple of days for a couple of hours”.
22Mr. Di Battista testified that he did not recall engaging in a heated exchange with Mr. Majewski on Tuesday, October 13, 2009. He denied that he said anything to the effect of not being happy that the applicant used the office washroom, and did not recall having stated that he was unhappy having a woman working as a general labourer. When asked if he had made the statement “this ain't no fucking charity”, he said “absolutely not”.
23The applicant testified that, after she was fired, she submitted applications, made phone calls and left her resumé with various employers. In cross-examination, the applicant maintained that she had looked diligently for work, but that she had to find jobs in her vicinity because her car was not reliable and because she had to use it to transport her fiancé back and forth to the respondent's place of business for three weeks after she was fired. While the applicant stated that one of her difficulties in finding employment was related to the fact that usually she and her fiancé tried to find work together-- this appeared to be related to the fact that they have between them only one car-- she maintained that she was prepared to work alone.
24The applicant testified that she finally found work in December of 2009, for three weeks. She found other employment in February of 2010 for about six weeks, and another job in mid-March 2010, for 4 to 5 months. She qualified for Employment Insurance in September, 2010, and received five or six months of Employment Insurance payments. At the time of the hearing she was on social assistance.
ANALYSIS
Issues of probability and credibility
25What is contested in this case is whether Mr. Blair fired the applicant, and whether, if the applicant was fired, the fact that she was a woman was a reason for the termination of her employment.
26The applicant and her witness claim that the applicant’s employment was terminated by Mr. Blair, and that her sex was a reason for the termination. They also claim that Mr. Di Battista was in part responsible for that decision. The respondents claim that the applicant effectively quit by failing to show up for work, and that her sex was not an issue in her employment.
27As noted above, in order to establish discrimination on a balance of probabilities the applicant may rely on circumstantial evidence. This may include evidence concerning any relevant circumstances, including evidence of actions or omissions on the part of the respondent, that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to support such an inference. Rather, it must be reasonable and more probable than not, based on all the evidence.
Did the applicant quit or was she fired?
28The respondents’ position is that the applicant quit after 2 days’ employment. It is of course possible that this could have happened. Several of the facts established at the hearing, however, weigh against this theory. First, the applicant was qualified for the work she did for the respondents, could do it competently, and was used to this work. There was no reason to think that she found it too hard. Secondly, the applicant was unemployed prior to her brief employment with the corporate respondent, and unemployed after it with the exceptions noted above, although she looked for work. Third, she drove to and from the respondents’ business frequently over the three weeks after her employment there ceased, as she had to ensure that her fiancé got there to work. The commute was clearly possible for her, and it would have been convenient, given her circumstances, to work at the same workplace as her fiancé.
29In cross-examination, the applicant admitted that she had not returned to the workplace to discuss her termination, or call Mr. Blair after her fiancé had told her that she was fired. I do not find this particularly remarkable in the circumstances. The applicant had no reason to doubt her fiancé’s word about what Mr. Blair had told him; she testified that she had never spoken to Mr. Blair other than to greet him in the morning, and Mr. Blair had issued instructions concerning her employment exclusively through Mr. Craig. Given that she believed she was fired, there was little purpose for contacting Mr. Blair other than initiating a confrontation.
30Counsel for the respondents suggested in cross-examination that, if the applicant had not quit, she should have queried the assertion on her ROE that she had done so. The applicant had acknowledged that she had applied for Employment Insurance in the past, and that she knew that eligibility for Employment Insurance differs depending on whether a person has quit or been fired.
31The applicant’s failure to query the ROE might have been significant if the ROE had been issued directly after the termination of the applicant’s employment. However, the ROE was not issued until almost five months after the applicant’s employment was terminated. Further, in answer to counsel’s questions, the applicant said that she believed that the ROE was only issued because she called the respondents’ office, and she had no need to call to obtain her ROE immediately after the end of her employment with the respondents, because she knew she did not have enough hours to qualify for Employment Insurance at that time. She stated that by the time she received the ROE she was preparing her Application. She addressed the “quit” designation on her Application, stating that it was untrue.
32Mr. Blair testified that there is considerable staff turnover among the general labourers. He estimated that over the past three years the corporate respondent, which employs 5 to 7 general labourers at any one time, has had 80 to 100 general labourers “come and go”. As noted above, he stated that he had no recollection of asking Mr. Craig to come back to the office at the end of the day on Tuesday October 13, 2009, no recollection of telling Mr. Craig that the applicant was not to come in the following day, and no recollection of being asked by Mr. Craig why the applicant was not to come in. He gave no evidence as to whether he had assigned the applicant to work on October 14, 2009. He testified that he had not asked Mr. Craig on the 14th why the applicant had not shown up for work.
33While there may have been considerable turnover among general labourers, I find it difficult to believe that Mr. Blair would not at least ask why the applicant, whose work appeared to be satisfactory, simply failed to show up after three days of work. It is uncontested that, during the brief period of the applicant’s employment, Mr. Blair approached Mr. Craig rather than the applicant about the applicant’s work assignments. Mr. Craig was at work on the 14th and subsequent days, but Mr. Blair never queried the applicant’s absence. This omission, together with the lack of any assertion that the applicant had been assigned to work on the 14th, is more consistent with the applicant having been fired than with the applicant having quit, and I conclude that the applicant was in fact fired.
Was the applicant’s sex a reason for the termination of her employment?
34As noted above, the applicant alleges that Mr. Majewski told Mr. Craig that Mr. Di Battista was unhappy about the applicant’s presence and that Mr. Blair told Mr. Craig that the applicant was fired because she is a woman. In addition, part of the evidence in this matter relates to an alleged negative reaction by Mr. Di Battista, occasioned by a female employee’s use of an office washroom rather than an outside facility.
35A person who suspects that he or she has been discriminated against commonly tries to work out a reason, on the limited information available to him or her. The applicant and Mr. Craig obviously believe that Mr. Blair fired the applicant because Mr. Di Battista, Mr. Blair’s employer, did not want a woman working in that job. It was also possible that Mr. Blair alone was responsible for the decision to fire. In making this decision, I considered that possibility, but on the evidence I have found, as noted below, that Mr. Di Battista influenced Mr. Blair’s decision.
36Concerning the shouting incident alleged by Mr. Craig to have occurred, it is unfortunate that the other person alleged to have witnessed the incident, Richard Majewski, the yard foreman at the relevant time, was not called by either the applicant or the respondent. In the course of giving his evidence, Mr. Blair stated that Mr. Majewski had left employment with the respondents for a time, but had returned and was employed there at the time of the hearing. In regard to whether the incident occurred and if so what happened, I am left with the evidence of Mr. Craig, Mr. Di Battista, and Mr. Blair.
37As noted above, Mr. Craig testified that, shortly after the applicant had used the office washroom, Mr. Di Battista approached the area where he was working and “began yelling and waving his arms at” Mr. Majewski. In his evidence in chief, Mr. Craig indicated that he could not hear everything that was said and could not recall the precise words used, apart from an alleged statement by Mr. Di Battista, delivered at a yell, that “this ain't no fucking charity”. He formed the impression from what he did hear that Mr. Di Battista had objected to the applicant's use of the office washroom. He said that, after the incident, Mr. Majewski looked upset and stated that Mr. Di Battista was “upset about Ruth’s presence”, and that “Ruth used the washroom and Romeo wasn’t pleased”. In cross-examination Mr. Craig stated that he had stood approximately 100 feet away from the place that Mr. Majewski and Mr. Di Battista were standing, which is consistent with his statement that he could not hear every word, although he could hear the voices and some words, and could hear and describe precisely a yelled statement.
38Mr. Di Battista testified that he did not recall engaging in a heated exchange with Mr. Majewski on Tuesday, October 13, 2009, or having stated that he was unhappy having a woman working as a general labourer. He denied having said anything to the effect of not being happy about the applicant’s presence or the applicant’s use of the office washroom, and emphatically denied having made the statement “this ain't no fucking charity”.
39There was no claim that Mr. Blair had witnessed or partaken in the alleged interaction between Mr. Di Battista and Mr. Majewski. However, in giving his evidence, Mr. Blair made some statements that suggested that the alleged interchange with Mr. Majewski did not take place because Mr. Di Battista could not have been in the yard to initiate it at the time alleged. In the course of his testimony, Mr. Blair stated that Mr. Di Battista only came in three or four times a week, and that he was “always in the office” and did not go into the yard area. I asked if he would know if Mr. Di Battista left the office, and he indicated that he would. He indicated that he was in a position to see everything that goes on in the office, and that there was a camera outdoors that gave him a view of the area where cars and trucks pull up to drop off materials for recycling.
40Mr. Di Battista’s evidence gave a different impression. In giving his evidence in chief, he indicated that most of his work was “in the back office bringing in customers”. I asked further questions concerning the layout of the business premises. Mr. Di Battista testified that the office of the corporate respondent is a rectangular building. There are two entrances; one at the south end and one at the northwest end. His office was in the northwest corner. Mr. Blair's office was in the south corner. Mr. Blair is in an open plan area. Mr. Di Battista’s northwest corner back office has walls and a door. In addition, there is a sister company located on the same site; Mr. Di Battista visits that building as well. On this evidence it appears to me that Mr. Di Battista could have left the office and spoken to Mr. Majewski outside, without Mr. Blair knowing that he had left the office.
41After Mr. Di Battista had responded to my questions, counsel for the respondent asked him if he had “engaged in management discussions with Mr. Majewski after getting out of his car” on the Tuesday in question. Mr. Di Battista said that he did not recall, but that it was not his practice to do so; he usually parks and comes into the office. Mr. Di Battista was not asked if he had left the office at any point on Tuesday.
42In assessing competing accounts of events in this matter, I have taken into account the witnesses’ interests in the matter, their relationship to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses’ evidence and my observations of the manner in which the witnesses gave their evidence. In regard to the manner of the witnesses, I listened very carefully to the words used by each witness, and noted when they stated that they could not recall as well as when their statements were more certain. In addition to adhering to the guidance given by the Supreme Court in F.H. v. McDougall (above), the Tribunal has consistently considered the observations of the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356–57 (B.C.C.A.):
Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility … The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
43The applicant could give no evidence about Mr. Di Battista’s alleged interaction with Mr. Majewski, or Mr. Blair’s alleged statement about her not being wanted for further work or why that was, and she made no attempt to do so. Her testimony about what she was told by Mr. Craig, and when, remained consistent with her original allegations, and consistent throughout her testimony. In giving evidence about the effect on her of the termination, and her search for further employment, she was brief and plain-spoken, did not appear to exaggerate or embellish in any way.
44Mr. Craig admitted he did not hear everything said in the alleged interaction, and gave no indication of any tendency to exaggerate or dissemble. In cross-examination, counsel for the respondent asked why his driver’s license had been suspended. Mr. Craig admitted that the suspension was for unpaid fines related to parking and some driving violations, including a fine imposed because a company truck that he was driving was considered unsafe, and a ticket for speeding. He stated that he had accumulated $600 in unpaid fines. I do not give this information any great weight in determining Mr. Craig’s credibility.
45I give some weight to the fact that Mr. Blair hired the applicant, and in doing so hired a woman. However, this does not preclude the possibility that he considered a woman a less valuable employee than a man, and in considering this I give some weight to Mr. Blair’s testimony that relayed his assignment instructions for the applicant through Mr. Craig, (as though he assumed that Mr. Craig could speak for Ms Whale), that prior to the time the applicant was hired, the corporate respondent had employed only women office workers, and that, since the applicant left employment, the corporate respondent has hired no female general labourers.
46Mr. Di Battista was named as a respondent on the supposition that he influenced Mr. Blair’s decision to dismiss the applicant. Mr. Blair stated that he had no reason to believe that Mr. Di Battista was upset for any reason that Tuesday, and that he had no recollection of Mr. Di Battista mentioning the applicant at all. However, he also claimed that he would have known if his employer had been out of the office on the Tuesday in question, which is not plausible on the evidence. Mr. Blair appeared to me to be very careful about how he worded his evidence concerning his employer, and I conclude that Mr. Blair’s evidence was influenced by his wish to protect Mr. Di Battista.
47Mr. Di Battista stated that he did not recall engaging in a heated exchange with Mr. Majewski on Tuesday, 13 October 2009, and did not recall having stated that he was unhappy having a woman working as a general labourer. He denied that he said anything to the effect of not being happy that the applicant used the office washroom, and making the statement “this ain't no fucking charity”.
48On a balance of probabilities, I conclude that while Mr. Di Battista indicated that he did not recall having an angry interchange with Mr. Majewski on Tuesday, 13 October 13 2009, he did so, and that he did, as indicated by Mr. Craig, express some unhappiness about the applicant’s presence and her use of the office washroom. While Mr. Blair stated that he had no reason to believe that Mr. Di Battista was upset for any reason that Tuesday, and that he had no recollection of Mr. Di Battista mentioning the applicant at all, I do not find Mr. Blair’s evidence on this point reliable.
49I therefore conclude on a balance of probabilities that Mr. Di Battista noticed that the applicant was present at the outdoor work site when she came into the office to use the washroom on October 13, 2010, that he was not happy that a female general labourer had been hired, and that he conveyed to Mr. Blair his unhappiness about the applicant’s presence.
50There is also some evidence that Mr. Di Battista was not happy that a general labourer working outside the office came into the office to use the washroom. If the position of the respondents had been that the applicant was fired, and was fired solely for this reason, I would have had to consider whether there is a nexus between the ground of sex and a dismissal because a general labourer had used the office washroom rather than the outdoor facility, possibly in the context of an argument under section 11 of the Code. The respondents’ position was that the applicant was not fired but quit, so this point was not addressed in evidence or argument.
51Considering the evidence as a whole, I conclude that it is more likely than not that the applicant, who had no reason to quit her employment and whom the respondents admit was competent and qualified for the work, was dismissed because of her sex. As Mr. Blair is admittedly a directing mind of the corporate respondent, the corporate respondent is liable for a breach of the Code (see s.46.3). In view of my finding that Mr. Di Battista influenced Mr. Blair’s decision, I find the personal respondent and the corporate respondent jointly and severally liable.
REMEDY
52Section 45.2 (1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
53The applicant’s evidence was that she had been hired as a full-time employee. She asserted that she would have worked a five-day week with twelve-hour days. She submitted two earnings statements and copies of two cheques from Keele North Recycling Inc., as well as her ROE and that of Mr. Craig. The material relating to the applicant establishes that, according to the respondents’ records, she worked 18.5 hours over two days, at a rate of $11.00 per hour. The earnings statements show no deductions from wages.
54The respondents consistently referred to the applicant’s employment as “part-time” but it appears that the employment might have better been described as casual, as it appears that days of employment were not scheduled very far in advance.
55There is little evidence concerning the number of days and hours of work the applicant could expect to have had from the date she was fired to the date of the hearing. As noted above, the applicant expected to work five days a week for 12-hour days. The respondents’ earnings statements show one day at 7.5 hours and one at 11 hours. Other than raising the point that the employment was casual, the respondents did not lead any evidence on the number of days and hours the applicant could have expected. In view of the fact that both the applicant and Mr. Craig testified without contradiction by the respondents that they worked days that were longer than eight hours, I conclude that long days were a feature of the respondents’ business. Given the documentary evidence, the lack of other evidence from the respondent and the fact that the applicant could not be sure as to her expected hours and days, I conclude that 35 hours a week is a reasonable basis for calculation in the circumstances.
56There is insufficient evidence that the applicant would have quit her employment. I do have evidence that the applicant’s fiancée quit his employment with the respondent; his last day was October 24, 2009. The evidence is that the couple relied on one car for transportation to work. Because of this, it was much more convenient to find employment in the same place, and a considerable inconvenience, Mr. Craig’s license having been suspended, to have only Mr. Craig employed with the respondents. The applicant might therefore have left employment with the respondents when Mr. Craig quit, or shortly thereafter. However, it is at least equally possible that the convenience of a shared workplace might have militated against Mr. Craig’s decision to quit, and it is possible that both would have continued with the respondent for a longer time. Further, the applicant has a family to support and might have continued with the respondents regardless of Mr. Craig’s decision.
57The applicant testified and was cross-examined concerning her efforts to find other employment, and the nature and duration of the employment she found. The onus of proof regarding any failure to mitigate rests on the respondents: Gohm v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Ont. Bd. Inq.) at para. 131; Ayangma v. Eastern School Board and Ano. 2008 PESCAD 10 at para 74ff. The respondents’ cross-examination did not raise anything that the applicant could have done that she neglected to do in regard to mitigation.
58Pursuant to section 45.2 (1), above, an applicant who proves a breach of section 5 of the Code is entitled to compensation for wage loss arising out of the discriminatory act. On the evidence, I have found it likely that the applicant would have continued to work for the company had she not been fired following the events of October 13, 2009. She is entitled to be compensated for her wage loss until the date she found equivalent employment which, on her evidence, was by mid-March of 2010. She testified that she earned $1695.00 in casual employment prior to that. The respondent did not contest this estimation. Wage loss will therefore be calculated from the applicant’s last day of employment to March 15, 2010, a period of 21 weeks. I calculate the total wage loss net of earnings at $6390.00.
59The applicant has also requested monetary compensation to address the effect of the respondent’s breach of the Code on her dignity, feelings and self-respect. Section 45.2(1)1 encompasses monetary awards made to compensate for intangible loss and suffering experienced because of a breach of the Code.
60Quantifying intangible loss and distress is a difficult exercise. In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed the principles on which compensation for injury to dignity, feelings and self-respect are awarded, and noted the importance of fairness to both applicants and respondents. The Tribunal has applied a degree of objectivity in assessing the amount of compensation; Seguin v. Great Blue Heron, 2009 HRTO 240. At the same time it has recognized that the actual impact of the discrimination on the applicant is an important consideration in assessing compensation. In addition, the Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), (2008) 295 D.L.R. (4th) 425 (Ont. Sup. Ct.).
61In her Application, the applicant says that she suffered loss of sleep and appetite after being fired, and felt as though she had no energy or ambition. She felt disappointed, depressed and degraded. She found herself being more irritable than usual. Having told her children that she would finally be able to buy them things they needed, she did not know what to tell them after she got fired. She felt “embarrassed and worthless”. She wondered whether, when her daughters get jobs “they will be ridiculed or fired because they are females”.
62The applicant’s period of employment was brief. In my view, the brevity or length of a period of employment period does not in itself indicate that the harm to an individual’s dignity was less severe or more severe; that depends on the circumstances. An individual dismissed because of a Code breach after a long period of employment may, for example, suffer great distress at loss of an established workplace social network, disregard of loyal service or the vulnerability that can arise out of compromised re-employability. On the other hand, an individual dismissed instantly because of personal characteristics protected by the Code may suffer great distress because of not being allowed even an opportunity to demonstrate his or her skill and commitment. In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 at para. 155, the Tribunal noted that “the summary way in which [the applicant] was dealt with amounted to a huge affront to his sense of self-worth”.
63In Sanford v. Koop 2005 HRTO 53, the Tribunal summarized the following factors frequently used in assessing the appropriate quantum of general damages for the violation of the right to be free from discrimination:
Humiliation experienced by the complainant
Hurt feelings experienced by the complainant
A complainant’s loss of self-respect
A complainant’s loss of dignity
A complainant’s loss of self-esteem
A complainant’s loss of confidence
The experience of victimization
Vulnerability of the complainant
The seriousness, frequency and duration of the offensive treatment
64Applying the above-noted principles and having regard to the applicant’s submissions, I find that $10,000.00 is an appropriate amount to compensate the applicant for the injury to dignity, feelings and self-respect. In arriving at this amount, I have considered that the applicant experienced loss of employment, objectively one of the more serious forms of discriminatory conduct (see LeBlanc v. Syncreon, 2010 HRTO 2336). On the other hand, she did not experience repeated or frequent offensive treatment. Her employment was brief, but she was at a vulnerable point in her life having experienced a period of unemployment, and she was distressed and humiliated.
65Under s. 128(1) of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended, pre-judgment interest runs from the "date the cause of action arose". Based on the evidence, this cause of action arose when the applicant was fired, on October 13, 2009. A link to the relevant rates of pre-judgment interest is provided on the Tribunal’s website, at the section on “The Law and Policies”. The Application having been filed in the third quarter of 2010, the applicable pre-judgment interest rate is 0.8%. With respect to the applicant’s damages for her loss of wages, I award pre-judgment interest on the amount of wage loss from December 22, 2009, the mid-point between the date on which the applicant commenced employment and the date on which she found equivalent employment. The amount of pre-judgment interest payable on this award from December 22, 2009 to March 15, 2011 is therefore $97.13.
66Finally, a remedy under section 45.2(1)3 of the Code to “promote compliance with this Act” is appropriate in this case. The corporate respondent is ordered to obtain at least one Code card, available from the Ontario Human Rights Commission by telephone or at www.ohrc.on.ca, and post it in a prominent location in its business premises.
Order
67The Tribunal makes the following order:
(a) Within 30 days of this Decision, the respondents shall pay $6390.00 to the applicant for loss of employment income form October 14, 2009 to March 15, 2010 inclusive. The personal and corporate respondents are jointly and severally liable to pay this amount.
(b) Within 30 days of this Decision, the respondents shall pay $10,000 to the applicant for violation of her inherent right to be free from discrimination, and for injury to her dignity. The personal and corporate respondents are jointly and severally liable to pay this amount. This award is an award in the nature of general damages for pain and suffering.
(c) The respondents shall pay the applicant pre-judgment interest on the award noted in paragraph a) above, of $97.13. The personal and corporate respondents are jointly and severally liable to pay this amount.
(d) The respondents shall pay the applicant post-judgment interest on any accumulated principal and interest in respect of award noted in all of paragraphs a) to c) above, calculated at 2% in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Decision. The personal and corporate respondents are jointly and severally liable to pay this amount.
(e) The corporate respondent shall, by October 25, 2011, obtain at least one Code card, available from the Ontario Human Rights Commission by telephone or at www.ohrc.on.ca, and post it in a prominent location in its business premise.
Dated at Toronto, this 20th day of September, 2011
“Signed by”
Judith Keene
Vice-chair